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THE RESTRAINED STATE Martha Albertson Fineman* I

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THE RESTRAINED STATE Martha Albertson Fineman* I 6 FINEMAN 609-626 (DO NOT DELETE) 1/22/2015 1:07 PM EQUALITY AND DIFFERENCE – THE RESTRAINED STATE Martha Albertson Fineman* I. INTRODUCTION ....................................................................................... 609 II. EQUALITY AND DIFFERENCE ................................................................. 610 A. Taking Account of Differences ................................................ 612 III. THE VULNERABILITY THESIS—FUNDAMENTAL ASSERTIONS ............ 614 A. Reconfiguring the Political Subject ......................................... 616 IV. DIFFERENCES AND THE VULNERABILITY PARADOX ........................... 618 A. Embodied Differences.............................................................. 619 B. Embedded Differences ............................................................. 622 V. THE CONCEPT OF RESILIENCE ............................................................... 622 VI. CONCLUDING REFLECTIONS ................................................................ 625 I. INTRODUCTION Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative well- being of individuals. As a check on state involvement, our cramped notion of equality limits the state’s ability to affirmatively address economic, political, social, and structural inequalities.1 As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state.2 Equality is understood as a mandate for * Robert W. Woodruff Professor of Law, Emory University. This Essay is based on the Meador Lecture I delivered at the University of Alabama in April 2014. I am deeply indebted to Stu Marvel, Postdoctoral Fellow for the Vulnerability and the Human Condition Initiative, who helped tremendously in furthering the development of this Essay after a fall resulted in the serious injury of my shoulder, which required surgery and resulted in the subsequent immobilization of my right arm and hand for several months. The limitations of this realization of my own vulnerability were mediated by the support and resilience she supplied. 1. See, e.g., CAROLINE KNOWLES, FAMILY BOUNDARIES 108–09 (1996) (discussing popular constructions of children, women, and minorities as vulnerable, pathological, and in a perpetual state of victimhood). 2. U.S. CONST. amend. XIV, § 1 (referring to the Equal Protection Clause); see Martha Albertson Fineman, Beyond Identities: The Limits of an Antidiscrimination Approach to Equality, 92 B.U. L. REV. 1713, 1726–27 (2012) (documenting how even a cursory examination of American Supreme Court 609 6 FINEMAN 609-626 (DO NOT DELETE) 1/22/2015 1:07 PM 610 Alabama Law Review [Vol. 66:3:609 formalized equal treatment; it operates as a nondiscrimination ideal. This ideal minimizes existing structural disadvantages and thus impedes a more substantive approach to equality, which would recognize and accommodate differences and consider outcome as well as treatment. This formal version of equality, while appropriate on some levels and in some contexts, is not sufficiently flexible to address contemporary disparities in political, social, and economic well-being in America.3 Any distinctions in the treatment of individuals can raise suspicion about government action, and this is particularly true with distinctions involving personal characteristics that are virtually impossible to constitutionally justify, such as race or gender.4 At the same time, the emphasis on discrimination or difference in the treatment of protected individuals or groups has been viewed as the primary affront to the principle of equality, rather than the widespread (but nondiscriminatory) exclusion from the benefits of American prosperity and technological advancement experienced by those who stand outside as well as inside these protected identity categories. That generalized harm and deprivation is not seen as constituting a legally remedial form of inequality, indicates that an adherence to formal equality has seemingly eclipsed our moral and political aspirations for social justice. In effect, this means that the state and its actors and institutions can legally treat individuals poorly, just as long as they treat them the same. II. EQUALITY AND DIFFERENCE The emphasis on equal treatment found in contemporary American jurisprudence may be desirable and appropriate when the class or nature of the differences between individuals has been deemed not to matter. This is the case when equality mandates one-person-one-vote or equal pay for equal work.5 However, an ideology of equality which concedes that differences exist, but seeks relentlessly to minimize or ignore the implications of such differences, makes it difficult to use law as a remedy for many situations and circumstances. In turn, this makes the attainment of substantive equality difficult, if not impossible, to achieve. Parents jurisprudence reveals a reluctance to articulate additional suspect classes and fundamental rights by the U.S. Supreme Court). 3. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 733–34 (2007) (holding that a student assignment plan that relied on racial classification to allocate slots in oversubscribed high schools could not be used to advance racial equality). 4. Concerning the problems with formal equality and equal protection in American jurisprudence, see Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 MINN. L. REV. 1, 1–2 (2011) (“The emptiness of U.S. constitutional equal protection doctrine has long been apparent from its lack of reach to its shaky grasp on questions of sex inequality.”). 5. Women working full-time earn approximately 80 cents to one dollar earned by men. See BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, WOMEN IN THE LABOR FORCE: A DATABOOK 68 (Dec. 2010), http://www.bls.gov/cps/wlf-databook-2010.pdf. 6 FINEMAN 609-626 (DO NOT DELETE) 1/22/2015 1:07 PM 2015] Equality and Difference – The Restrained State 611 Involved in Community Schools v. Seattle School District No. 16 is an example of this phenomenon involving voluntary measures undertaken by school districts to desegregate classrooms. The case involved a series of Seattle-area school districts which had voluntarily incorporated a race-sensitive student assignment plan to determine which public schools certain children could attend.7 The goal of the plan was to ensure that the racial balance of each school fell within a predetermined range, calculated based on the racial composition of the entire school district as a whole; the school district thus considered each individual student’s race when assigning them to a particular school.8 When some students were not allowed to attend particular schools because of their race, their parents brought suit, contending that this race-sensitive allocation to public schools was in violation of the Fourteenth Amendment guarantee of equal protection.9 Five of the nine Justices held the assignment plan impermissible based on lack of necessity and due to the absence of a history of intentional discrimination in the districts.10 Justice Kennedy disagreed with the four more liberal members of the Court that the Constitution permits such desegregation efforts, even though it does not require them in the absence of prior discrimination.11 Chief Justice Roberts’s concluding sentence clearly illustrated the position of the conservative Justices, perhaps marking the future of equality in cases of racial imbalance: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of 12 race.” 6. 551 U.S. 701 (2007). 7. Id. at 709–10. 8. Id. at 710. 9.Id. at 710–11. 10. Justice Kennedy agreed with the four liberal Justices that there was a compelling interest in avoiding racial isolation and promoting diversity. However, Kennedy concluded that although “[a] compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue,” he found that “[w]hat the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification.” Id. at 797–98 (Kennedy, J., concurring). The plurality recognized that a remedial legal injury would exist if there was harm arising from past discrimination. Absent that injury, Kennedy found it necessary to show “necessity” in order to validate state affirmative measures to prevent racial isolation. Necessity indicates there is no other way to remedy possible future harm, a situation rarely likely to occur. Kennedy’s perspective seems to view any difference in treatment as presumptively harmful and inappropriate, meaning that any differential treatment must be justified by necessity regardless of the nature of the current and future harm to be addressed. The doctrinal box thus drawn is an exceedingly small one. The backward-looking requirement of prior legal injury (discrimination) is of extremely limited usefulness, while the mandate of necessity in regard to present or future harm significantly impedes the development of affirmative educational policy to address a recognized social problem. 11. Id. at 790. 12. Id. at 748 (majority opinion). 6 FINEMAN
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